The Youth Justice and Criminal Evidence Act 1999 contains special measures designed to allow witnesses to provide pre-recorded evidence in chief (for more detail, please see, Section 28, which is not yet in force, allows for cross and re-examination to also be pre-recorded.
In essence, in advance of the trial, the complainant will be cross-examined (and re-examined, as the case may be) while being recorded. When it came to the point in the trial when the individual would have been cross-examined, the video recording will instead be played.
Recent announcements have suggested that these provisions may be coming into force as early as the autumn of this year (though there is some confusion as to whether this in fact only relates to a pilot of the project.)
In light of the recent discussion around these issues, we look at the potential advantages and disadvantages of the changes to the system, and how this will impact on our adversarial justice system.
There has been serious concern in recent years concerning the process of giving evidence for complainants in sexual crimes. Having the complainant give evidence at an early stage may help reduce stress and anxiety. Not only this, it may actually help recall and result in much higher quality evidence.
However, there are also issues in cross-examining at such an early stage. For the defence, there are obvious concerns in relation to early disclosure. It is very difficult to respond to disclosures and prepare a full defence very early in the process. This can make it very challenging for the defence to actually ensure that their defence is of the highest quality.
The existing pilot scheme also provides for a considerable level of case management. For example, at the Ground Rules Hearing Parties are able to discuss what questions will be posed and the judge can remove any unsuitable questions prior to cross examination. There are concerns that this dilutes the ability for the defence to effectively question the complainant in cross-examination and in turn dilutes the adversarial nature of our criminal justice system.
Therefore, while we may be obtaining the best evidence from the complainant, the same may not be true of the accused.
It can also be said that, in giving evidence at an early stage, out with the courtroom, the complainant’s anxieties may be somewhat alleviated. However, this argument fails to appreciate that there are already special measures in place which deal with these concerns. For example, there are already measures in place which would allow for a complainant to give live evidence from a different room within the court or give evidence from behind a screen. The question therefore arises, in this sense, is the system really significantly different to the current protections measures?
There are also issues around difficulties in juries assessing the complainant or witnesses when they are not physically present in the courtroom. It may be difficult to pick up on signals in body language, tone and other non-verbal signs which feed into witness credibility. This can be both detrimental for the complainant and the accused.
There are also numerous issues around the right to a fair trial. Under Article 6 of the European Convention on Human Rights (incorporated into domestic law through the Human Rights Act 1998) every accused has the right to a fair trial and to be presumed innocent until proven guilty. In order to ensure these rights are protected, it is essential that the accused has the opportunity to conduct a full and proper cross-examination.
Ultimately, in order for any of these measures to be successful, far greater training is required. The advocacy involved is very different in pre-recorded cross-examination. Defence agents, the prosecution and judges all need to have suitable support and training to ensure that justice does not suffer.
Equally, technology must undergo significant improvements before these kind of measures can ever prove successful. In the report emanating from the first pilot involving under 16s, it was noted that the technology used in the pilot was inadequate. The report identified key issues including an insufficient amount of screen space dedicated to witnesses; issues with the sound quality during playback; the fact that the s.28 equipment caused live link rooms to be unable to be used for other live-link evidence; and an inability to play CCTV footage to witnesses during cross-examination. These issues are not trivial technical glitches – they have a very real impact on the delivery of justice. It is clear that the justice system is currently severely under-funded. Significant funding will need to be directed into these changes if they are to be successful.
It cannot be denied that the system needs improvement. Recent media reports have highlighted that the system is not delivery justice for complainants. However, the answer to these problems cannot and should not be to erode the rights of the accused. A better balance requires to be struck. The piloting of the system may allow for problems to be ironed out at an early stage. However, rushing new procedures into place will ultimately damage the justice system. We must strive to do better in a thoughtful, considered manner, which ensures that justice is not only done but seen to be done.
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Chambers & Partners 2017 - Rated as Band 2
21 March 2019
Case of YZ (and A.N.other) 2019 EWCA CRIM 466 judgment handed down on 19 March 2019. Our client sentenced to a term of imprisonment of 6 years after entering guilty pleas for sexual assault of a child and the making and distribution of indecent image.